The People of the State of New York, Respondent, v. Kevin O. Hamilton, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. Kevin O. Hamilton, Defendant–Appellant.

1180 6

Decided: February 25, 2014

Sweeny, J.P., Andrias, Moskowitz, DeGrasse, Gische, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and DLA Piper LLP, New York (Robert J. Czarnecki Jr., of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.

Kevin O. Hamilton, appellant pro se.

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Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 24, 2010, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of eight years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).   The course of conduct of defendant and his companion demonstrated that defendant was “aided by another person actually present” (Penal Law § 160.10[1] ) who acted, at least, as a lookout during the robbery.   The evidence also established the element of physical injury (see Penal Law §§ 10.00[9];  160.10[2][a] ), in that the victim's injuries were more than mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200 [1980] ), and clearly caused “more than slight or trivial pain” (People v. Chiddick, 8 NY3d 445, 447 [2007];  see also People v. Guidice, 83 N.Y.2d 630, 636 [1994] ).

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record (see People v. Rivera, 71 N.Y.2d 705, 709 [1988];  People v. Love, 57 N.Y.2d 998 [1982] ).   Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.   In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714 [1998];  Strickland v. Washington, 466 U.S. 668 [1984] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK